STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


ERWIN SPRENGER, Applicant

FRITZ THE PLUMBER INC, Employer

EMPLOYERS MUTUAL CASUALTY CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1997-012304


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

INTERLOCUTORY ORDER

The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed September 27, 2000
sprener.wsd : 185 : 1 ND § 5.29  § 5.31

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Respondents assert that Dr. Maiman's and Dr. King's opinions are not credible because they were unaware of the applicant's preexisting symptoms. Dr. Maiman indicated in his medical report of May 15, 1997, that the applicant had a preexisting cervical spondylosis which was moderately severe but asymptomatic until the accident of September 29, 1993. Dr. King diagnosed degenerative disc disease with osteophytic growths at C5-7, and wrote that the applicant was developing arm symptoms a few days after the accident. Clinic notes of August 13, 1992 and August 28, 1992, reveal that the applicant was seen for swelling and pain in his left arm. No clear diagnosis was made and there is no indication that the problem persisted.

The 1992 pain and swelling occurred a full year prior to the accident of September 29, 1993, and was not demonstrated to have amounted to an ongoing condition. Dr. O'Brien listed the 1992 treatment in the medical history section of his report, but did not comment on its significance. Dr. King's incorrect history of arm symptoms developing within a few days after the accident does undercut his opinion, but the commission finds that Mr. Maiman took an accurate medical history and provided a credible opinion regarding causation. Dr. Maiman explain that the onset of left arm symptoms within several months of the incident leads to the credible inference that the incident accelerated the applicant's preexisting cervical condition beyond its normal progression.

Respondents also asserted that the applicant's disability was a scheduled disability, because it is manifested in his arm and hand. However, the applicant's injury is a cervical disc injury which is an unscheduled injury not listed in the schedule provided in Wis. Stat. § 102.52, and which calls for a whole body permanency assessment pursuant to Wisconsin Administrative Code Chapter DWD 80.32(11). Respondent cited Vande Zande v. ILHR Department, 70 Wis. 2d 1086, 236 NW2d 255 (1975), for the asserted proposition that the extent of disability is measured by the point of the body where such disability exists. In Vande Zande, there was an injury to the applicant's hearing (a scheduled injury). There was also injury to his head in form of dizziness or vertigo, loss of sense of taste and smell, and facial paralysis (unscheduled injuries). The case dealt with the distinction between these scheduled and unscheduled injuries, but did not involve an injury to the spine and does not support respondent's argument.

The applicant asserted in his cross-petition that he had submitted a prima facie case for permanent total disability, and that since respondent's vocational expert had failed to respond with a labor market survey or other evidence that work was continuously and regularly available for the applicant, permanent total disability must be found.

However, Dr. King opined that the applicant was capable of functioning on a "lighter sedentary duty" level, Dr. Maiman opined that he could return to work at a sedentary/light-duty occupation not requiring repetitive neck motion or frequent use of the left arm, and Dr. Riesch recommended that the applicant seek other work but could no longer do plumbing. Thus, none of the applicant's treating physicians restricted him from sedentary work. Significantly, the applicant has not sought any employment since reaching a healing plateau from his surgery, even though his physicians released him for sedentary work. He chose instead to retire. Retirement in itself is not considered a bar to assessment of loss of earning capacity, because retirees not uncommonly choose to return to the labor market in some form. But the applicant's behavior and circumstances indicate a lack of interest in seeking any employment. No doubt the applicant would argue that in his case his physical condition and other circumstances mandated retirement. However, his physicians' opinions do not support such an argument. Nor does Daniel Kuemmel's opinion credibly support the inference that the applicant is capable of finding only "odd lot" employment. The applicant has extensive experience in the plumbing field, which could be translated into parts or service clerk work in plumbing or other fields. He also has a good work record and supervisory experience. He is physically capable of sedentary work. The credible inference is that he could find regular employment if he chose to look for it, albeit at a wage rate greatly reduced from that which he earned as a journeyman plumber/supervisor. Accordingly, the commission finds that the applicant did not present a prima facie case for permanent total disability, and that the administrative law judge's finding of a 70 percent loss of earning capacity is correct.

cc: ATTORNEY THOMAS M DOMER
SHNEIDMAN MYERS

ATTORNEY BONNI D FREDRICK
KASDORF LEWIS & SWIETLIK SC


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